Theft of free papers

[Mark Graber]

Are the following hypotheticals helpful?

1. A university prints forms for registration.  They are placed in a public area with a sign, "Take One."  Either the sign on common understanding makes clear that persons can take one for their friends, indeed for their entire dorm.  X takes all of the forms and burns them.  I take it that X may be disciplined by the university.

2.  There is a potential flu epidemic.  The university has a supply of oral vaccine.  Again, the supply is placed in a public area with the sign, "Take One."  Again, either the sign or common understanding makes clear that persons can take one for their friends, indeed, for their entire dorm (and also for friends outside the university).  X takes all the supply and throws them away.  Again, I take it that X can be disciplined by the university.

3.  What's the difference if we talk about a newspaper (suppose the paper has university permission/approval).

Mark A. Graber
mgraber at gvpt.umd.edu

>>> volokh at mail.law.ucla.edu 10/28/01 16:58 PM >>>
        Frank is correct that the distinctions don't justify a separate rule --
they just explain why what I think to be the basic rule makes sense.

        The basic rule is that someone who puts something out in a public place
doesn't abandon the property as such.  The property remains his own, but he
can expressly or implicitly allow people to take it under certain
conditions.

        Thus, when people put out those candy bar displays, with a note that each
bar is 25 cents, and with a coin bank for the quarters (rare in the big bad
city, I know, but even there I've seen them), anyone taking all the bars and
paying nothing -- or even taking one bar for nothing, or for that matter
taking the coin bank -- is stealing, because he's taking another's poperty
without the person's permission.  Anyone who takes a bar and pays the 25
cents is not stealing, because he's taking another's property with the
person's permission.

        Likewise, when someone sells magazines at a newsstand, and someone buys up
all the magazines and trashes them, that's not theft because there's express
permission to take the magazines ("thanks for the $20, here are your ten
magazines").  Similarly when someone sells newspapers through unattended
newsstands, and a person puts in enough quarters for each of the 25-cent
newspapers.  I made the point about such purchases being self-limiting
simply to respond to what I saw as Frank's assertion that the distinction
between buying and taking doesn't make practical sense.  I think it does
make practical sense, but it also makes theoretical property sense.

        On the other hand, if someone puts in 25 cents and takes all 20 newspapers
(because he physically can), that is theft, because it goes outside the
license.  That's true if I start reselling those newspapers to readers,
resell the newspaper to a recycler, or even just throw them out.  Likewise
if someone takes a bunch of magazines from an outside newsrack when the
attendant isn't looking.  Likewise if someone takes the whole print run of a
free newspaper.  He is taking another's property without that other's
permission.

        The one possible response, it seems to me, is that putting out free
newspapers itself implicitly permits people to take *any* number of
newspapers for any reason at all.  But this, it seems to me, is a weird sort
of license to infer, given that no reasonable property owner would grant
such a license, and thus no reasonable would-be taker should assume that
such a license is granted.  Still, even if this is an inference, this should
be easily rebutted simply by a prominent note saying "Limit X per person."

        I appreciate John's and Frank's point that in some respects the newspaper
theft might actually not accomplsh much by way of suppression, because it
just attracts a lot of publicity.  But I'm not sure that's really quite
right.  People might know there's a controversy, but many won't see the
actual speech, only hear about it indirectly.

        What's more, if this becomes a habit, then the publisher may quickly lose a
lot of money.  If the L.A. Weekly print run was routinely stolen, the Weekly
would lose a great deal of advertising revenue, and might well go bankrupt.
So I don't think that this can be so lightly dismissed.

        Eugene

> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Frank Cross
> Sent: Sunday, October 28, 2001 4:39 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Theft of free papers
>
>
> I agree with Eugene's distinctions but I'm not sure that they justify a
> separate rule.  One can always come up with a continuum on the degree to
> which behaviors are self-limiting; the question is why this makes
> something
> theft or not.  In the obverse, one could say that swiping a police car is
> pretty self-limiting, but it's still considered theft.  And the relative
> ease of taking a free paper can be counteracted by a rule such as "two per
> person."
>
> Indeed, the very practice of acquiring a whole run of papers seems to be
> self-limiting, if the goal is some sort of censorship.  Presumably, the
> purpose behind such action is to prevent the information from being read.
> Yet the action seems likely to give more publicity to the information.  If
> a company bought the papers, as in my hypo, it's probably buying
> up a worse
> situation, because that story will be broadcast widely in other outlets.
> Isn't the same true here?  How many of us would be aware of the underlying
> story absent the taking of the papers?  The taking becomes the
> story and is
> spread widely.  Are any members of the intended student audience really
> unaware of the essential content of the paers that were taken?  If I am
> right that the answer is no, then the conduct truly is expressive
> behavior.
>  The initial content is not kept hidden, but the strong feelings of the
> takers are also known.  The whole controversy gets more play and
> attention,
> on both sides.  How would this result contravene First Amendment values.
>
>
>
> At 04:06 PM 10/28/2001 -0500, you wrote:
> >        (1)  The conduct that Frank describes is much more
> self-limiting than
> >throwing out a free newspaper's press run.
> >
> >        (2)  Beyond this, it is much less effective of a tool for denying
> people
> >access to the story, since the publishers can simply take the income from
> >the issue and reprint and redistribute it -- and can keep doing
> it so long
> >as people keep buying.
> >
> >        So it seems to me that the analogy isn't that powerful.
> >
> >Frank Cross writes:
> >
> >> While my gut instincts tell me that the taking of an entire run of free
> >> papers is theft, I'm finding it hard to defend.  Consider the
> following,
> >> concededly not terribly realistic, hypo:
> >>
> >> Imagine a small magazine that thrives on newsstand sales, without
> >> subscribers (or relatively few).  The magazine is about to publish a
> >> shocking expose of a congressperson, company, etc.  A well-heeled
> >> organization purchases all of the newsstand copies.  Dubious
> action, with
> >> similar free press issues, but certainly not theft.
> >>
> >> In a sense, even free papers are "purchased."  The acquirer
> must make the
> >> effort to visit the distribution site, pick up a paper, and
> carry it off.
> >> I think the conduct at issue here is similar to the purchaser of
> >> all copies
> >> of the expose.
> >
> Frank Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> CBA 5.202
> University of Texas at Austin
> Austin, TX 78712
>